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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
Case No. 13-12931
Hon. Lawrence P. Zatkoff
LAW OFFICES OF DAVID A. KOTWICKI,
OPINION AND ORDER
AT A SESSION of said Court, held in the United States Courthouse,
in the City of Port Huron, State of Michigan, on July 30, 2013
PRESENT: THE HONORABLE LAWRENCE P. ZATKOFF
UNITED STATES DISTRICT JUDGE
Plaintiff submitted his pro se complaint [dkt 1] and application to proceed in forma pauperis [dkt
2] on July 5, 2013. For the following reasons, Plaintiff’s request to proceed in forma pauperis is
GRANTED and Plaintiff’s pro se complaint is DISMISSED.
A. Plaintiff’s Request to Proceed In Forma Pauperis
Plaintiff has filed an application to proceed without prepayment of fees. Under 28 U.S.C. §
1915(a), “any court of the United States may authorize the commencement, prosecution or defense of any
suit, action or proceeding . . . without prepayment of fees or security therefor, by a person who submits an
affidavit that includes a statement of all assets such prisoner possesses that the person is unable to pay
such fees or give security therefor.” The reference to assets of “such prisoner” is likely a typographical
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error; thus, § 1915(a) applies to all natural persons. See Floyd v. U.S. Postal Serv., 105 F.3d 274 (6th Cir.
1997). If a motion to proceed without prepayment of fees is filed and accompanied by a facially-
sufficient affidavit, the Court should allow the complaint to be filed. See Gibson v. R.G. Smith Co., 915
F.2d 260, 261 (6th Cir. 1990) (citing Phillips v. Carey, 638 F.2d 207, 208 (10th Cir. 1981)). Only after
the complaint is filed is it tested to determine whether it is frivolous or fails to state a claim. See id. at 261.
The Court finds Plaintiff’s financial affidavit facially sufficient; therefore, the Court GRANTS Plaintiff’s
application to proceed in forma pauperis [dkt 2].
B. Review of Plaintiff’s Complaint
Upon considering a plaintiff’s request to proceed in forma pauperis, the Court performs a
preliminary screening of the complaint under several provisions of the United States Code. Pursuant to
28 U.S.C. §§ 1915A, 1915(e), and 42 U.S.C. § 1997e(c)(1), the Court is to sua sponte dismiss the case
before service on Defendant if it determines that the action is frivolous or malicious, fails to state a claim
upon which relief can be granted, or seeks monetary relief against a defendant who is immune from such
relief. The Court has a duty to construe a pro se plaintiff’s pleadings liberally, see, e.g., Haines v. Kerner,
404 U.S. 519 (1972), but in doing so, it will not re-write a deficient complaint or otherwise serve as
counsel for that plaintiff. See GJR Invs, Inc. v. County of Escambia, Fla., 132 F.3d 1359, 1369 (11th Cir.
Apart from its screening duty under 28 U.S.C. § 1915(e)(2), the Court is required to dismiss an
action at any time if it lacks subject-matter jurisdiction. See Fed. R. Civ. P. 12(h)(3). See also FW/PBS,
Inc. v. City of Dallas, 493 U.S. 215, 231 (1990) (stating that a federal court is always “under an
independent obligation to examine [its] own jurisdiction”); Wagenknecht v. United States, 533 F.3d 412,
416 (6th Cir. 2008) (“A district court may sua sponte dismiss an action when it lacks subject-matter
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jurisdiction.”). A federal court may not entertain an action over which it has no jurisdiction. See Ins.
Corp. of Ir. Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 701 (1982).
Here, even under the most liberal standards afforded to pro se litigants, Plaintiff’s complaint must
be dismissed because the Court lacks subject-matter jurisdiction. Plaintiff asserts the following counts:
legal malpractice, fraudulent misrepresentation, innocent misrepresentation, detrimental reliance,
intentional infliction of emotional distress, and exemplary damages. Notably, all of the foregoing counts
are grounded in state law. Without even considering the legal viability of these claims, Plaintiff’s
complaint suffers from a fundamental deficiency—the failure to properly establish that this Court
possesses subject-matter jurisdiction. In other words, because Plaintiff has failed to plead a federal cause
of action, and because the parties in this case are not completely diverse under 28 U.S.C. § 1332(a), the
Court has no jurisdictional basis to entertain this case. As such, the Court dismisses Plaintiff’s complaint.
Accordingly, IT IS HEREBY ORDERED that Plaintiff’s request to proceed in forma pauperis
[dkt 2] is GRANTED.
IT IS FURTHER ORDERED that Plaintiff’s pro se complaint [dkt 1] is DISMISSED for lack of
subject-matter jurisdiction under Fed. R. Civ. P. 12(h)(3).
s/Lawrence P. Zatkoff
Hon. Lawrence P. Zatkoff
U.S. District Judge
Dated: July 30, 2013